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Removing a Claim from Rule 68 – Criteria To Be Considered

Written by admin on . Posted in Civil Procedure, Uncategorized. 74 Comments on Removing a Claim from Rule 68 – Criteria To Be Considered


As readers of this blog know Rule 68 is a ‘proportionality‘ based rule which was brought in a few years ago and was intended to be mandatory to certain claims worth $100,000 or less in the BC Supreme Court.
Rule 68 has not been particularly successful and many injury lawyers have avoided this rule whenever possible due to its perceived shortcomings.  This rule is going to be wiped from the books when the New BC Supreme Court Civil Rules take effect on July 1, 2010.  Rule 68 will be blended with the New Rule 15 which really combines the best of our current alternative litigation rules.
Despite Rule 68’s mandatory nature, Rule 68(7) permits parties to get out of Rule 68 if a Court “so orders“.
So what factors will a court considering in removing a case from the rule?  Reasons for judgement were published today on the BC Supreme Court website dealing with this issue for what I believe is the first time.
In today’s case (The Board of Trustees of School District No. 41 v. Crane Canada Co.) the Plaintiff sued for damages as a result of allegedly faulty bathroom fixtures.  The case was worth less than $100,000 but the Defendant’s wanted it removed from Rule 68.  They applied for an order under Rule 68(7) and were successful.  In removing the case from Rule 68 Mr. Justice Groves provided a list of non-exhaustive factors that could be considered on such applications, specifically the Court held as follows:

14] Unfortunately, the criteria to apply to an application to remove a case from Rule 68 has not been effectively resolved by the case law as of yet.

[15] On these facts, a number of considerations are appropriately applied to the consideration of whether or not a case should be removed from Rule 68.

[16] The following discussion is not meant to be exclusive.  It is somewhat factual driven, as must all the cases be.  It is not the final word on or is it intended to be a definitive word on when Rule 68 is not appropriate to litigation.

[17] Of note first is that Rule 68 has the $100,000 cap.  That does not mean all case under $100,000 are appropriately litigated under Rule 68.  There are many types of cases which fall within the $100,000 cap and based on a simple analysis of complexity it may be inappropriate to allow a case to continue under Rule 68.

[18] Here is an example.  A motor vehicle case which is under $100,000 which involves only an assessment of non-pecuniary damages is clearly a case in which Rule 68 should apply.  That, I am probably going out on a limb here to say, is the type of case that Rule 68 was clearly designed to manage.  A straightforward piece of litigation.

[19] However, sticking within the $100,000 criteria and the motor vehicle scenario, there are cases in which a claim for damages from a motor vehicle accident might be under $100,000 but it would not be appropriate for them to continue under Rule 68.  That would be a case perhaps where both liability and damages are in dispute and expert evidence is required on both those issues.  Additionally, the damages may be under $100,000 but may involve non-pecuniary damages, past wage loss, cost of future care and future lost opportunity.  Though all those heads of damages may still work out to a grand total of damages of less than $100,000, that type of case with a liability and damage component is clearly one which is in my view too complex and requiring too many potential streams of evidence and expert evidence for it to logically continue under a Rule 68 model.

[20] A second consideration that the courts should take in determining whether or not Rule 68 still should apply is whether or not the issues between the parties are of interest only to them or whether or not there is some legal or juristic significance to the litigation.  Clearly a dispute between two people about a contract, a property dispute between two neighbours, a simple motor vehicle case, are cases in which the issues between the parties are of interest only to those parties and likely do not have any long-term legal or juristic significance.  Case which have long term consequences to litigants or far reaching juristic significance may not.

[21] Thirdly, a consideration about removal should be whether or not moving the case to the regular stream would have the effect of putting an end to the litigation because of cost and not allowing the parties to actually pursue their litigation because Rule 68 is not open to them.

[22] With those non-exclusive approach, I now turn to an analysis of this case…

While Rule 68 is being abolished soon this case may still retain some value as a precedent under the New BC Supreme Court Civil Rules as Rule 15-1(6) the ‘fast track’ rule contains a similar subrule about removing a case from fast track litigation if a Court ‘so orders‘

More on Rule 37B – Lack of a "Reasonable Counter Proposal" Considered

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Jury Trials, Uncategorized. 51 Comments on More on Rule 37B – Lack of a "Reasonable Counter Proposal" Considered


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, considering a factor that I don’t believe has been previously considered under Rule 37B, the effect (or lack of) a reasonable counter offer.
In today’s case (Foster v. Juhasz) the Plaintiff was injured in a BC car crash.  She sued for damages.  Before trial she made a formal offer under Rule 37B for some $285,000 and at the same time indicated she would be willing to settle for $214,000.  The Defendants rejected the offers, apparently did not make a counter offer and went to trial.
At trial the Jury awarded the Plaintiff over $450,000 in total damages.  The Plaintiff then brought a motion for ‘double costs’ under Rule 37B.
The Defendants argued that they could not have accepted the offer because their insurance policy was only for $200,000.   Mr. Justice Crawford rejected this argument and ordered that the Defendants pay double costs.  He reasoned that the offer should have been accepted.  In coming to this decision he took into consideration the fact that the Defendants did not make a “rational counter-proposal“.  Mr. Justice Crawford provided the following reasons:

[14] While I accept the policy limits may have been a factor in not accepting the offer, it does not answer the question why a rational counter-proposal was not made by the defendants. There was no comment made by the defendants as to the reasonableness or otherwise of the plaintiff’s offer. Rather, the position was taken that the defendants had a meritorious case to present on the issues which could result in an award under policy limits. If that was so, then a sensible and rational defendant could have sat down and appraised the plaintiff’s case. For instance an assessment of general damages at $60,000, past wage loss at $2,000, future lost earning capacity at $35,000, and $25,000 for future care could be made. That would not have been unreasonable and at least if not accepted, might have created a pathway to settlement. Such an offer pales in comparison to the jury award, especially the future income capacity and future care components. More so in that I recall directing the jury to be moderate. I am obliged to say the jury’s award was far beyond the evidence on these aspects.

[15] However, I do not accept the argument that the defendants were in an impossible situation in terms of accepting the offer. They chose their own level of insurance, and their choice was, with respect, a very low one given current potential liabilities for motor vehicle owners. I accept counsel’s belief that there were reasonable arguments to advance as to the amounts of the plaintiff’s claims. It was not unreasonable to think a jury, in light of the small past income loss, might not give a large future lost income award. As to the reasoning of the jury on the future care aspect, that cannot be fathomed. But no direction is given to a jury on the quantum of general damages, save in catastrophic cases.

[16] The motion for judgment was not contested by the defendants at trial. Counsel does say the case is under appeal, so the quantum may not be settled. I agree with Humphries J. that while consideration should be given to the result, the court’s discretion is not to be driven by “hindsight analysis”: see Lumanlan v. Sadler, 2009 BCSC 142.

[17] Another aspect is deterrence. The difference in the offer and the final award is a factor, as is the failure of the defendants to make a sensible counter-offer. It was not a case where the plaintiff would not obtain a reasonable award. It was a case to be carefully assessed and the usual avenues for settlement explored. A reasonable counter-offer would show a sensible stance being taken by the defendants before trial. That course was not chosen.

[18] Under the previous rule, double costs would have been automatic. Now there is consideration of whether or not the offer could be reasonably accepted.

[19] While there may have been some grounds for not accepting the offer, no response was made, the defendants choosing to “keep their powder dry” for trial. In the circumstances, the plaintiff is entitled to her double costs, which I allow for preparation for trial, examination for discovery, and the trial. I do not allow costs for the notices to admit which I now address.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

BC Court of Appeal Discusses Rear End Crashes and Permitted Inferences of Negligence

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized.

Usually when a driver rear-ends another vehicle that driver is at fault.  However, this is not always the case and reasons for judgement were released today by the BC Court of Appeal addressing this area of law.
In today’s case (Singleton v. Morris) the Plaintiff was involved in a rear end collison in 2005.  She sued the owner and driver of the vehicle that rear-ended her claiming negligence.  The driver of the rear vehicle gave evidence that the collision happened not due to carelessness, but as a result of an unexpected slippery substance on the road (perhaps brake fluid) and this caused her to lose control and collide with the Plaintiff vehicle.  This evidence was accepted and the Plaintiff’s claim was dismissed by the trial court.
The Plaintiff appealed the finding arguing that the trial judge was wrong.  The Court of Appeal disagreed and dismissed the appeal.  In doing so the Court discussed the permitted inferences of negligence in rear end crashes cases and the burden of proof.  The highlights of the Courts discussion were as follows:

[32] The burden of proof in cases of negligence is set out in Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424. There, Mr. Justice Major stated that the maxim of res ipsa loquitur should be treated as expired. He said:

27        It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions.  After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.  [Emphasis added.]

[33] Mr. Justice Major’s statement sets out the general approach in negligence cases.  That is, the trier of fact should weigh both the circumstantial evidence and the direct evidence, where available, in determining whether the plaintiff has established a prima facie case of negligence.  In cases involving both direct and circumstantial evidence, the circumstantial evidence, and any inferences that may be drawn from it, is but one component of the case.  Where, however, there is no direct evidence, circumstantial evidence and the inferences that may arise from it may form the entire basis of the plaintiff’s case.

[34] Importantly, as stated by this court in Marchuk v. Swede Creek Contracting Ltd. (1998), 116 B.C.A.C. 318 at para. 10:

… The legal burden of proof, of course, remains on the plaintiff throughout.

[35] Here, because the plaintiff failed to establish that the defendant was driving at an excessive speed, there was no direct evidence of negligence on the part of the defendant.  Therefore, the plaintiff was forced to rely on circumstantial evidence and sought to establish an inference of negligence because the accident was a rear-end collision.

[36] Madam Justice Newbury examined the drawing of such inferences and the rebutting of them through the defence of explanation in Nason v. Nunes, 2008 BCCA 203.  InNason, a car had gone off the road. Newbury J.A. said:

[14]   … This is not to suggest that an inference may not be drawn as a matter of fact in a particular case, where a vehicle leaves the road or a driver loses control; but as the trial judge stated … such an inference will be “highly dependent on the facts” of the case and the explanation required to rebut it will “vary in accordance with the strength of the inference sought to be drawn by the plaintiff.”  [Emphasis in original.]

[37] In Fontaine, Mr. Justice Major applied the law relating to such inferences and the defence of explanation to the facts of the case before him, stating:

33        If an inference of negligence might be drawn in these circumstances, it would be modest.  The trial judge found that the defence had succeeded in producing alternative explanations of how the accident may have occurred without negligence on Loewen’s part.  Most of the explanations offered by the defendants were grounded in the evidence and were adequate to neutralize whatever inference the circumstantial evidence could permit to be drawn.  The trial judge’s finding was not unreasonable and should not be interfered with on appeal.

[38] Thus, in cases such as this, the trial judge may – but is not required to – draw an inference of negligence from the fact there was a rear-end collision.  The defence, however, may attempt to rebut such inferences through the defence of explanation.  A defence of explanation, as stated in Hackman v. Vecchio (1969), 4 D.L.R. (3d) 444 at 446 (B.C.C.A.) is an explanation of how an accident may have occurred without the defendant’s negligence.  The defendant does not bear the onus of proving how the accident did happen.  The trial judge drew an inference of negligence in this case.  She said, “In this case, given that this was a rear-end collision in which the truck was properly stopped and was there to be seen, there is a prima facie case of negligence.”  Further, the trial judge correctly noted that Mrs. Morris “has to advance an explanation as to how the collision may have occurred without negligence on her part.”

[39] Here, the inference of negligence was, as the trial judge correctly held, adequately explained.  The plaintiff had failed to establish that Mrs. Morris was driving at an excessive speed or braked too late.  The trial judge accepted the defendant’s explanation of the presence of the oily substance on the road.  The explanation was “adequate to neutralize whatever inference the circumstantial evidence could permit to be drawn.”  The trial judge’s finding was not unreasonable and should not be interfered with on appeal.

[40] I would dismiss the appeal.

Multiple Claimants in ICBC Hit and Run Injury Claims; Sharing a Limited Pool

Written by admin on . Posted in Civil Procedure, Uncategorized. 100 Comments on Multiple Claimants in ICBC Hit and Run Injury Claims; Sharing a Limited Pool


If you are the victim of a hit and run collision in British Columbia you can sue ICBC directly in certain circumstances to seek damages in tort.  This is so because of Section 24 of the Insurance (Vehicle) Act which creates certain compensation rights for victims of hit and runs.

ICBC’s monetary liability under Section 24 arising our of the same accident is $200,000 all inclusive.  What happens when multiple people are injured in a hit and run claim and their claims exceed $200,000?  How does ICBC distribute the funds from this fixed pool?  Reasons for judgement were released today by the BC Supreme Court dealing with this narrow but important issue.

In today’s case (Thoreson v. ICBC) the Plaintiff and his passenger were injured in a 2002 motorcycle accident near Vernon, BC.  Their motorcycle was run off the road by an unidentified driver.    ICBC was sued under s. 24 and after trial the Unidentified driver was found 85% responsible for the crash and the Plaintiff driver was found 15% responsible.

Both the Plaintiff and his passenger settled the value of the claims.  The Plaintiff’s claim was settled for $125,000 and the passenger’s claim for $935,521.  To satisfy the damages both the Plaintiff and the passenger claimed damages from ICBC under section 24.  Mr. Justice Cole of the BC Supreme Court was asked determine how much of the $200,000 available in the section 24 ‘pool’ the Plaintiff was entitled to.

Ultimately the Court noted that this pool of money needs to be shared proportionately to their claims leaving the Plaintiff with only 11% of the pool or some $23,000.  In reaching this conclusion Mr. Justice Cole provide the following reasons:

[16] Having found that (the passenger) made a claim under s. 24 of the Act, I am also satisfied that ICBC made a payment pursuant to that section. ICBC did not blur the distinction between the coverages. Even if she wrote a demand letter to Excellent Adventures Ltd., what (the Plaintiff) does in terms of trying to collect her money cannot, in my view, affect the rights and obligations of ICBC. ICBC’s involvement with respect to the 85% liability of the unidentified driver was statutory; as a nominal defendant pursuant to the statute, not as a real defendant. Therefore, their obligations to pay are determined pursuant to the statute. Pursuant to s. 24(8), ICBC was expressly required to satisfy the judgement within the authorized limits and ICBC did so.

[17] The plaintiff also argues that s. 24 is a “social welfare” type of section and therefore should only come into play after (the passenger) has exhausted all the other available avenues of compensation. However, there is nothing in the wording of s. 24 to suggest that payment under s. 24 is secondary or excessive coverage only.

[18] The purpose of s. 24 has been set out in two cases:  Alfonso v. Insurance Corp. of British Columbia (1992), 63 B.C.L.R. (2d) 378, 88 D.L.R. (4th) 689 (C.A.) at 698, where Madam Justice Rowles commented in respect to s. 23 [now s. 24]:

The purpose of the statutory scheme created by ss. 23 and 46 of the Insurance (Motor Vehicle) Act is to provide some measure of compensation to those who have suffered injury caused by “hit and run” collisions where no common [sic] law remedy is available…

[19] In Fundytus v. Insurance Corporation of British Columbia (1989), 59 D.L.R. (4th) 131, Mr. Justice Gow states as follows, at 139:

The intent does not embrace the monetary succour provided by the “safety net” of s. 23 of the Insurance (Motor Vehicle) Act. I.C.B.C. the nominal defendant is not “the party liable” within the meaning of s. 10(2), (6) and (10) but the agency through which the person who has a cause of action as defined by s. 23 may as a matter of social welfare policy obtain some measure of monetary solace…

[20] While this is a correct statement of the policy considerations underlying s. 24, the legislation makes it very clear that ICBC must pay pursuant to s. 24(8). There is no discretion in my view. The only deductions available are for an insured claim, pursuant to s. 106 of the Regulations. This does not include a deduction for payment or amounts that could be recovered from a liable defendant or insurance payable to a liable defendant, due to vicarious liability as indemnity accrues to the tortfeasor not the claimant.

[21] Because ICBC was required to pay (the passenger) under s. 24(8) and because those payments were made, the entirety of the fund does not remain untouched and the plaintiff must share in the distribution of those funds. Pro-rata distribution is the norm, save for exceptional circumstances: I.C.B.C. v. Pozzi, 2004 BCCA 440 at para. 22, 244 D.L.R. (4th) 641. Exceptional circumstances have been found to include when an insurer makes voluntary payments under the policy: Stobbe v. Allwood Estate (1983), 81 B.C.L.R. (2d) 117, 15 C.C.L.I. (2d) 305 (S.C.). However, in the present case (the passenger) had already obtained a judgment at the time of payment. Payment on a judgment does not qualify as a voluntary payment: Henry v. Zurich Insurance Co. (1998), 49 B.C.L.R. (3d) 195, 50 C.C.L.I. (2d) 35 (S.C.). This is not a case for the discretion, to deviate from the normal distribution of funds, to be exercised.

[22] Having found that (the passenger) made a claim under s.24 of the Act and received payment pursuant to that section, this then limits the plaintiff’s recovery from ICBC pursuant to section 24 of the Act, to his pro-rata share of the $200,000 fund…

[24] The plaintiff Thoreson settled his claim for the amount of $125,000 net of his 15% liability assessment, and (the passenger) obtained judgement in the amount of $935,521.79 including costs. The following is the calculus for a pro-rata distribution of the fund:

Claimant

Settlement or Judgment sum

Proportion

Pro Rata Portion of s. 24 Funds

(the passenger)

$935,521.79

88.213%

$176,426.70

Mr. Thoreson

$125,000.00

11.786%

$23,573.30

[25] In conclusion, Mr. Thoreson is entitled to recover $23,573.30 from ICBC pursuant to s. 24 of the Act.

I should point out to my readers that there are special limitation periods and defences available in Section 24 lawsuits and these are worth reviewing when advancing such a claim.   If you are the victim of a hit and run in BC and are not familiar with these specific issues you should seek legal advice immediately to ensure your rights are protected due to the technical nature and limitations of section 24 compensation claims.

$75,000 Non-Pecuniary Damages for Aggravation of Pre-Existing Knee Arthritis

Written by admin on . Posted in ICBC Knee Injury Cases, Uncategorized. 98 Comments on $75,000 Non-Pecuniary Damages for Aggravation of Pre-Existing Knee Arthritis


A common issue courts have to address in injury litigation is the effect of trauma on pre-existing asymptomatic arthritis.  Often times after people are injured X-rays and other diagnostic tests reveal arthritic changes in joints which produced no pain prior to the trauma.  Often times accidents cause these pre-existing conditions to become painful.  A theme which usually comes up in these types of cases is whether the degeneration would have become painful at some point in time without the trauma.  Reasons for judgement were released today by the BC Supreme Court dealing with such an injury to the knees.
In today’s case (Michal v. Begg) the Plaintiff was injured in a 2003 motor vehicle accident.  The driver of the Plaintiff’s vehicle lost control and hit a concrete highway divider.  The crash was significant destroying the vehicle on impact.
The plaintiff sustained various injuries including the onset of pain in his knees.  The Plaintiff did not have pre-existing knee pain but on examination arthritic changes which would have pre-dated the accident were noted.  The accepted medical evidence was that even if the Plaintiff did not have the accident he would have likely eventually experienced pain in his knees but the trauma accelerated this.  Mr. Justice Curtis assessed the Plaintiff’s non-pecuniary damages at $75,000.  In arriving at this figure the court noted the following about the extent and effect of the accident related injuries:

[26] In summary, I find it proven on the balance of probabilities that as a result of the December 18, 2003 collision, Miroslav Michal suffered a whiplash injury aggravating a pre-existent mild recurrent neck pain, which is now continuing on about the same course as it would have had the 2003 accident not occurred, injuries to his head, right shoulder, right and left wrists, fingers and elbow strains, rib injury and a buttock contusion, all of which has resolved fairly quickly, and injuries which have produced symptoms persisting to the present time, namely to his right ankle, right foot and left and right knees.

[27] The right knee was clearly injured in the collision as is demonstrated by the immediate appearance of pain, swelling and stiffness.  That knee had pre-existing degenerative changes which were not symptomatic prior to the collision, but were clearly made symptomatic following it.

[28] There is no immediate medical record of Mr. Michal complaining about left knee problems.  That knee also had pre-existing degenerative changes which were not symptomatic prior to the accident.  I am satisfied, however, that the collision did aggravate the condition of the left knee and caused it to become symptomatic afterwards.  Mr. Michal has testified that was the case and his testimony is supported by the observations of Mr. Begg and his Aikido instructor.  Mr. Michal is clearly not a complainer and I accept that early left knee symptoms were simply overlooked in dealing with more urgent matters.

[29] Both knees were showing pre-existing signs of degeneration in all three compartments.  The outlook for his knees was that the degeneration could continue and would have at some point become symptomatic even if there had not been any December 18 injuries.  It is likely his knees would have got bad enough to affect his function even if he had not been injured.  How long that would have taken is not clear – Dr. Anton offers the opinion that “The pre-existing changes would probably have become symptomatic absent the accident but that could have taken five years or longer.”  Dr. Sovio in his report of March 6, 2006 was of the opinion that:

He, in all likelihood, had pre-existent degeneration which predisposed him to this problem and regardless he would have had some difficulties with his knees in the future. It is difficult to say when this would have shown up but it would likely have presented itself in the relative near future.

[30] On the evidence, I find it reasonable to attribute Mr. Michal’s knee symptoms to the date of his surgery in January and April of 2007 to the collision, but I find that, while the collision injuries remained a contributing factor, his failure to recover as expected from his knee surgery and his worsening condition from September 2007 onward was attributable to the fact that he had degenerative knees as well as the fact that they had been made worse by the collision induced injuries.  It is probable that Mr. Michal would have ended up having arthroscopic surgery to his knees even without his 2003 injuries but that surgery was probably significantly sooner because of the December 2003 injuries.

[31] The plantar fasciitis in his right foot has become chronic but the medical opinion is that it should be cured.  His right ankle does not show evidence of significant injury.  I accept that these have troubled him as he has described to the date of his trial, but I find that they remain treatable and should not pose a significant problem for him in the future.

[32] Considering the pain and suffering Mr. Michal has had from his injuries, and the significant loss of enjoyment of life they have caused him, in particular forcing him to forego his long time interest in martial arts, I assess Mr. Michal’s claim for general damages at $75,000.

BC Injury Claims and the Rule Against "Case Splitting"

Written by admin on . Posted in Civil Procedure, Uncategorized. 145 Comments on BC Injury Claims and the Rule Against "Case Splitting"


When an ICBC or other injury claim goes to trial the Plaintiff needs to prove their case.   In the most basic terms this means that in a tort claim fault needs to be established along with the nature and extent of the accident related injuries and the losses that these have caused.  The Plaintiff normally does this in what’s called the Plaintiff’s ‘case in chief‘.  If the Plaintiff fails to call evidence on any of these points the case can be dismissed on a ‘no-evidence‘ motion.
Once the Plaintiff finishes calling his/her case the defence has the opportunity to call evidence to contradict the Plaintiff’s case or in support of theirs.  A Plaintiff can then call ‘rebuttal evidence‘ and this is something that often occurs in injury litigation when the Defence calls medical experts with conflicting opinions about the cause of the Plaintiff’s injuries.
There are limits on rebuttal evidence, however, and one such limit is that the evidence called in rebuttal must be truly responsive to the other sides case as opposed to addressing the points that needed to be proven in the ‘case in chief‘.  If a court concludes that rebuttal evidence is not truly responsive a court can keep it from going in.  Reasons for judgement were released today discussing this point of civil procedure.
In today’s case (Bransford v. Yilmazcan) the Plaintiff was injured in a motor vehicle collision.  In her case in chief she called evidence discussing her accident related injuries which apparently included Thoracic Outlet Syndrome and Headaches.  The Defendants then called their expert (Dr. Makin) who addressed the cause and prognosis of the Plaintiff’s injuries.
The Plaintiff then wished to call Drs. Prout and Caillier to give rebuttal evidence.   The Defendants objected arguing that the evidence was not truly responsive and the Plaintiff was attempting to ‘split her case‘.  Madam Justice Griffin agreed that some of the evidence was indeed not true rebuttal evidence and did not allow portions of the proposed evidence in.  Specifically she found that the proposed evidence diagnosing accident related Thoracic Outlet Syndrome and Headaches could have been called in the Plaintiff’s case in chief.  Madam Justice Griffin held as follows:

[6] First, Dr. Makin was asked a number of questions in his direct evidence regarding definitions of thoracic outlet syndrome, including the question “What are two types of thoracic outlet syndrome that involve nerves?”  His evidence was that one, the type that involves nerves, is true neurogenic thoracic outlet syndrome, and that is the only type that involves the nerves.  He said a different type, disputed thoracic outlet syndrome, is a type diagnosed by vascular surgeons, and that neurologists do not agree with that classification.

[7] The implication of his evidence, including other questions he was asked in direct about how he conducted his tests, was that neurologists as a group are of the view that provocative testing reveals no clinically helpful information in diagnosing thoracic outlet syndrome and that they are opposed to vascular surgeons reaching this diagnosis.

[8] In my view this is a proper basis for rebuttal evidence on this narrow point; i.e., is a neurologist of the opinion that there can be a diagnosis of thoracic outlet syndrome in the absence of positive signs and a nerve conduction study?  And, is a neurologist of the opinion that provocative testing can be helpful in diagnosing this?

[9] The plaintiff cannot have been in a position to respond to the suggestion that neurologists do not hold that opinion as a group until the defence witness was heard on that point.  Indeed, arguably this point could not have been anticipated as it was not specifically identified in Dr. Makin’s report.

[10] I therefore conclude that it would be appropriate for the plaintiff to call rebuttal evidence of Dr. Prout to respond to this point, since Dr. Prout is a neurologist.

[11] However, Dr. Prout goes beyond this in his report and does his own evaluation and diagnosis of Hanna Bransford for thoracic outlet syndrome.  I am of the view that this goes further than proper rebuttal and runs the risk of splitting the plaintiff’s case, and so it is not appropriate.

[12] Second, Dr. Makin performed what were referred to as inching studies as part of his nerve conduction studies and reached a different diagnosis than the plaintiff’s physicians and experts, namely he diagnosed a problem with Ms. Bransford’s ulnar nerve.  I am of the view this is an appropriate matter for rebuttal evidence, namely an analysis of Dr. Makin’s nerve conduction studies and any comment disputing his findings and any contrary inching studies regarding the ulnar nerve.  This evidence would not be splitting the plaintiff’s case because the plaintiff does not assert that her diagnosis has anything to do with her ulnar nerve.

[13] I also note that the oral evidence of Dr. Makin reporting on these studies is not significantly narrowed from the point he makes in his written report and the defendants had agreed earlier that this was the proper subject of the rebuttal reports of Dr. Caillier and Dr. Prout.

[14] Further, the plaintiff could not properly have anticipated this evidence in its entirety until it was called from Dr. Makin.

[15] As for Dr. Makin’s evidence on headaches, I am of the view this is not the proper subject of rebuttal evidence, at least insofar as revealed in Dr. Prout’s report.  Headaches have always been part of Ms. Bransford’s symptoms and we have heard one plaintiff’s witness, Dr. O’Connor, describe them as cervicogenic.  Dr. Makin disagrees and describes them as migraine.  Dr. Prout does not point out any flaw in Dr. Makin’s science from a neurologist’s perspective, but really just gives an opposite opinion, an opinion that could have been given in the plaintiff’s main case.  The plaintiff was in a position to respond to the labelling of Ms. Bransford’s headaches as cervicogenic or migraine prior to the close of its case as it had notice of Dr. Makin’s description of the headache as migraine.

$45,000 Non-Pecuniary Damages for Soft Tissue Injuries to Back, Neck and Shoulders

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, awarding a Plaintiff just over $88,000 in total damages as a result of a 2006 BC car crash.
In today’s case (Dutchak v. Fowler) the Plaintiff was involved in a rear-end collision.  Fault was admitted by the Defence lawyer leaving the Court to deal with the sole issue of quantum of damages (value of the injury claim).  The Plaintiff suffered various soft tissue injuries which continue to bother her by the time of trial and these had a likelihood of continuing indefinitely into the future.  In assessing the Plaintiff’s non-pecuniary damages at $45,000 Mr. Justice Sewell made the following observations about the severity of the accident related injuries:

22] While I accept that Ms. Dutchak has genuine symptoms, I do have some concerns that she has unrealistic expectations about the consequences of the physical activities in which she engages.  Ms. Dutchak runs 30 to 40 kms a week.  She also regularly exercises vigorously, plays squash three times a week and cycles for long distances on a regular basis.  These activities undoubtedly cause physiological stresses on her anatomy.

[23] It is apparent that engaging in these physical activities is an important part of Ms. Dutchak’s relationship with her husband.  Both Ms. Dutchak and her husband continue to place a high level of importance on physical activity and a good deal of their personal interactions with one another revolves around physical fitness and exercise activities.  In addition Ms. Dutchak’s self esteem is quite dependent on being fit and active.

[24] I have concluded that Ms. Dutchak is now able to engage in almost all of the activities she did before the accident, but at a price.  That price is a much higher level of pain and discomfort than before the accident.

[25] The preponderance of evidence before me satisfies me that it is unlikely that Ms. Dutchak’s symptoms will completely disappear.  However, I am also of the view that there is a reasonable possibility that she will experience some continued improvement as she adjusts to her altered circumstances…

[28] In the result, I conclude that Ms. Dutchak has suffered soft-tissue injuries to her upper back, shoulders and neck which have resulted in stiffness, pain and headaches, all of which are significantly aggravated by strenuous physical activity.  She continues to experience those symptoms.  My conclusion is that there is some prospect of continued improvement but that in assessing damages in this case, I should proceed on the basis that Ms. Dutchak will continue to suffer these symptoms indefinitely.  On the other hand, I also conclude that Ms. Dutchak is now able to perform virtually all of the tasks and activities that she did prior to the accident and, in particular, is able to engage in vigorous physical activity.  In carrying out these activities she has no mechanical limitations.  The only restriction on these activities is the pain which they cause.

[29] I have also concluded that Ms. Dutchak is highly motivated to continue with these activities and, in fact, is continuing to perform and engage in them notwithstanding the level of pain and the headaches that she experiences as a result…

In my view, this case is one in which an award of non-pecuniary damages should be at the lower end of the range for cases involving chronic pain.  I say this because Ms. Dutchak is able to engage in all of the activities she formerly did with the assistance of analgesic medicines and in the full knowledge that engaging in activities will often trigger pain for her.  In all the circumstances I award Ms. Dutchak $45,000 for non-pecuniary damages.

More on BC Injury Claims and Discovery – Balancing Document Disclosure with Privacy

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 101 Comments on More on BC Injury Claims and Discovery – Balancing Document Disclosure with Privacy


As I’ve previously written, when a person sues for damages in the BC Supreme Court they give up certain privacy rights with respect to records (both theirs and those in the hands of third parties) to the extent necessary to ensure that relevant unprivileged documents are disclosed to have a fair trial.
In the context of personal injury litigation documents in the hands of third parties are often requested.  For example, where a Plaintiff is injured the Defendant often wishes to obtain the clinical records documenting the injuries.  Where a serious injury claim is made seeking damages for past and future wage loss often time employment records, tax records and pre-accident medical records demonstrating pre-existing disabilities are sought.
Once it’s determined that these ‘third party’ records are relevant how are they to be produced?  Often times if the records are clearly relevant the Plaintiff lawyer will obtain them and share a copy with the defence lawyer.  In cases where the parties can’t consent the party seeking the records can bring a court motion for production.
The BC Supreme Court has come up with two typical routes of disclosure; the “Jones” order and the “Halliday” order.  At the risk of over-simplification, a Jones order means ordering that the third party produce records relating to the Plaintiff directly to to the Defendant and a Halliday order means producing the records directly to the Plaintiff who then can vet clearly irrelevant entries before providing the defence lawyer with a copy.
With this introduction out of the way, reasons for judgement were released today by the BC Supreme Court providing perhaps the most thorough analysis of when each format should be used and what is required to trigger the protection of the “Halliday” format.
In today’s case (Gorse v. Straker) both parties sought various third party records relating to the litigants.  In considering the applications Mr. Justice Macaulay provided the following detailed and useful overview of this area of the law:

[6]             My general conclusions are as follows. It is necessary to start with a review of the pleadings to determine the matters in issue. Some applications fail at this preliminary point because it is obvious from the specific nature of the documents sought that the party seeking production is engaged in a fishing expedition. There is, at law, no obligation on any third party to produce irrelevant documents. See Dufault.

[7]             Assuming the application survives the initial review for relevancy, the court must then consider the evidence that the parties rely on. It is, at this point, that some of the potential inconsistency appears in the chambers decisions. I discuss some of the cases below and list others that I have reviewed.

[8]             In short, I conclude that a Halliday order is not a default order for medical or other records in which the subject of the record has an obvious privacy interest. The court should grant a Halliday order if satisfied, on the evidence, that there is a likelihood that a Jones order will also result in the inappropriate production and disclosure of irrelevant or privileged documents.

[9]             The problem that frequently presents is that one party seeks access to records of a non-party respecting the other party that are of a type in which it is reasonable to expect that some will be relevant and others irrelevant. A similar problem often arises respecting litigation privilege. It is often reasonable to assume that counsel for the party, who is the subject of the records, will have communicated with the non-party concerning the litigation. Such communications, if in existence, are likely subject to litigation privilege. It is arguable that, inHalliday, Lambert J.A. anticipated that the mechanism he described would operate in all such cases without requiring an evidentiary base. As I set out later, I do not accept that contention.

[10]         The threshold for making a Halliday rather than a Jones order is low. Nonetheless, some admissible evidence is necessary to meet it.

[11]         This leads to another issue that has attracted attention in the case law: whether the party who alleges an adverse impact on his or her privacy interest arising from the production of irrelevant, private information must personally provide evidence. After all, the affected party is ordinarily in the best position to explain how his or her privacy interest would be adversely impacted.

[12]         In my view, the party alleging the adverse impact should ordinarily swear an affidavit setting out, at least in general terms, the nature of the privacy interest but that is not an absolute requirement so long as there is other admissible evidence on the point. These are not final orders so affidavits sworn on information and belief are admissible.

[13]         Keeping in mind that the evidentiary threshold is relatively low, the evidence does not necessarily need to disclose all the details of the privacy interest but must be sufficient to reasonably identify the nature of the interest and why it appears to be unrelated to any material issue in the litigation…

[24]         When a Halliday order is made, so long as counsel fulfills his or her obligations, there is, apart from the minimal delay associated with the two-step process, no prejudice to the opposing party’s discovery rights. If the opposing party feels that relevant information may not have been disclosed, he or she can still apply to the court to make a determination, as with other disclosure concerns. Further, as suggested in Halliday, at 200, any abuse of the order by overextending claims of privilege or unduly restricting relevance can be dealt with in a costs order.

[25]         In my view, privacy considerations add to the justification for making Halliday orders for the production of medical and some other types of records. The reasoning in this regard may be followed through various decisions since Halliday, up to and including the Supreme Court decision in Keller v. Poulin (16 September 2009), Nanaimo S41497 (S.C.)…

[37]         In the result, I am satisfied that, when the record sought is likely to contain not only relevant, producible information but also irrelevant, private information, the order for production should be in Halliday format. This is very often the case with medical records and may also be applicable to MSP, disability, workers’ compensation, employment or educational records.

[38]         When the records at issue relate to medical or psychological assessment or treatment of the plaintiff after a motor vehicle accident, they may well include relevant, producible documents; irrelevant, private, non-producible documents; and documents properly subject to litigation privilege. Counsel for the plaintiff should take care to present evidence to demonstrate that there is, in fact, some irrelevant, private information or documents, properly subject to litigation privilege. It is not enough to identify the mere possibility because the court cannot properly draw an inference from a possibility.

[39]         It follows that I accept the contention of counsel for the defendants that the decision whether to make an order in Halliday format must be evidence based. In his written submissions, counsel asserts, relying on the Supreme Court decision in Grewal at para. 17, that:

A bare assertion of privacy or confidentiality over the records to be produced in the absence of any evidence regarding irrelevant or privileged information does not meet the requisite threshold for a Halliday type order.

The passage in Grewal summarizes authority for the proposition that a bare assertion of privacy or confidentiality, “in the absence of any evidence regarding irrelevant or privileged information,” is an insufficient basis for a Halliday order. In the same paragraph, the judge also referred to authority that an “expression of mere concern” that the records might contain irrelevant or privileged information is not sufficient.

[40]         I agree with those statements. It is not enough for a party or, as is often the case, a paralegal assisting the party’s lawyer to swear an affidavit raising a mere possibility of privileged or irrelevant, private information. In reaching this conclusion, I also considered and followed the reasoning in the following chambers decisions: Wieler v. Bercier, 2004 BCSC 752; Sullivan v. Lockhart, 2002 BCSC 1891; Bhandari v. Waddington, 2003 BCSC 498, 13 B.C.L.R. (4th) 373; and finally, Ross (Committee of) v. Lai, 2002 BCSC 1864.

[41]         The evidentiary burden is not an onerous one. The evidence necessary to support a conclusion that the particular records sought are irrelevant will vary according to the content of the pleadings and the nature of the record. In some cases, it may be possible to conclude, on an analysis of the pleadings, that they are irrelevant and, accordingly, not required to be produced at all. When it is apparent that some, but not necessarily all, of the records should be produced, there must be some evidence respecting the content of the records said to require the review by counsel contemplated by a Halliday order.

[42]         When the documents at issue are said to be private and irrelevant, it is usually the party who provides the evidence. For example, in Grewal, the plaintiff deposed that the consultation with her gynaecologist related to the delivery of her two children and that, in her view, the records were not relevant to the claims that she had advanced. If the question relates to litigation privilege, an appropriate agent or employee of the party’s lawyer should swear to the fact of the communications said to give rise to the privilege without disclosing actual content…

[88] I return to my suggestion that counsel should, wherever possible, work through the questions of non-party document production in a manner that recognizes and balances the often competing interests. The present applications would likely have been unnecessary if counsel had done that. In the circumstances, neither succeeded in their primary positions in any meaningful fashion. Both sides will bear their own costs as a result.


Please My Lady, Overturn that Award! One of BC's Largest Personal Injury Jury Awards Discussed

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized. 42 Comments on Please My Lady, Overturn that Award! One of BC's Largest Personal Injury Jury Awards Discussed


Late last year a Vancouver Jury handed out one of the biggest Personal Injury awards in British Columbia’s history.  In that case (Ciolli v. Galley) the Plaintiff was injured in three seperate motor vehicle accidents.  The trial for all of her claims were heard together and a Jury initally awarded some $12 million in compensation.
The award included $6.5 million for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  Such an award is not allowed in Canada as a result of a series of cases known as “the trilogy”.  In the trilogy the Supreme Court of Canada found that the maximum a victim can be awarded for non-pecuniary damages in a negligence claim is $100,000.  Adjusted for inflation this cap is now close to $327,000.  After being advised of this fact the Jury reduced their award of non-pecuniary damages to this maximum amount bringing the total judgement to some $6.2 million.
The Defendants, undoubtedly surprised by the award, asked the trial judge to disregard the Jury’s award arguing that the damages awarded were “exceptional” and mandated “judicial intervention“.  The Defendants asked that a mistrial be ordered .
Madam Justice Loo dismissed the mistrial application finding she had no jurisdiction to overturn the award.   In reaching this conclusion Madam Justice Loo made the following observations:
Only in limited circumstances may a trial judge refuse to accept a jury’s verdict; when he or she concludes “that there is no evidence to support the findings of the jury; or where the jury gives an answer to a question which cannot, in law, provide a foundation for judgment”…
In my respectful view, the defendants are really complaining that the jury’s award is inordinately high or wholly out of proportion to the evidence and cannot be reasonably supported by the evidence. That may be, but unless there is no evidence to support the jury’s findings, a trial judge may not reject a jury’s verdict. I cannot conclude that there was no evidence before the jury relating to Ms. Ciolli’s claim for pecuniary loss, and accordingly, the application is dismissed.
This case is heading off to the BC Court of Appeal and I’ll be sure to report the BC High Court’s comments on this case once they have an opportunity to release their reasons for judgement.

A Positive Tort Reform in the Works? Nova Scotia and the Minor Injury Cap

Written by admin on . Posted in Tort Reform, Uncategorized. 46 Comments on A Positive Tort Reform in the Works? Nova Scotia and the Minor Injury Cap


Tort reform generally refers to limiting the rights of those injured through the carelessness of others to the beneift of insurance company profits.  To this end Alberta and Nova Scotia enacted laws over the last several years artificially capping the compensation certain injured people can claim for non-pecuniniary damages (money for pain and suffering and loss of enjoyment of life).
These laws have been the subject of various court challenges and in 2009 the Alberta Court of Appeal found that Province’s Soft Tissue Injury Cap was constitutional and around the same time Nova Scotia’s Court of Appeal concluded that their ‘minor injury claims’ cap was also valid.
It’s against this background that I read a surprisingly refreshing headline today at The Lawyers Weekly.   The Nova Scotia government is considering abolishing their “minor injury cap” which limits non-pecuniary damages in that Province for certain injuries to $2,500.    One of the problems with the law is that many serious injuries such as broken bones and chronic soft tissue injuries could be considred ‘minor’ given the wording of the law.
The Lawyers Weekly reports that the Premier of Nova Scotia claims that the cap ‘is preventing people who have been seriously injured from pursuing compensation and will not survive in its present form‘.  I could not have summarized the unfairness of these laws better than the Premier himself did when he stated that “Insurance is a product designed to protect people.  If you exclude people from protection…then by definition you’re not delivering the product that has been paid for“.
Nova Scotia is apparently seeking public input on the best way to revise this 6 year old law.  The insurers who proffited under this law will likely rally against this change.  For this reason those interested in seeing this law overturned and having the rights of those injured throught he fault of others restored should make sure their voices are heard.  You can voice your support for this positive change by contacting the Government at the following address:
The Office of the Superintendent of Insurance
PO Box 2271
4th Floor
Provincial Finance Building
1723 Hollis Street
Halifax, NS B3J 3C8
You can click here to read the full story at The Lawyers Weekly.